Fighting Strict Limitations Against Jury Selection

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The jury has an immense responsibility to determine whether a defendant is liable for the causes of action claimed by a particular plaintiff. It is thus important that attorneys are given enough flexibility during jury selection to ensure that the jury is composed of the fairest and most impartial persons possible.

Occasionally, however, judges are prone to imposing strict limitations on the jury selection process to promote courtroom efficiency. Nevertheless, jury selection in California is governed by Code of Civil Procedure § 222.5, and attorneys should carefully read this section to successfully argue for more flexibility during this process in order to secure the best jury for your case.

Section 222.5 states: "At the final status conference or at the first practical opportunity prior to voir dire, whichever comes first, the trial judge shall consider and discuss with counsel the form and subject matter of voir dire questions." The following issues are those that should be raised at the final status conference, or earliest practicable time:

1. Time allowed

   One of the most frequent limitations on jury selection is the imposition of a strict time limit irrespective of the complexity of the issues in the case and the estimated length of trial. Nevertheless, Section 222.5(a)(2) reads: "The trial judge shall not impose specific unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire."

   Section 225(c)(1) further states: "In exercising the judge's sound discretion, the trial judge shall give due consideration to all of the following:

   1. The amount of time requested by trial counsel.
   2. Any unique or complex elements, legal or factual, in the case.
   3. Length of the trial.
   4. Number of parties.
   5. Number of witnesses.
   6. Whether the case is designated as a complex or long cause."

   Counsel should be prepared to discuss each of these factors that are applicable to the case in order to secure the appropriate amount of time to conduct an effective jury selection procedure.

2. Use of questionnaires

   Attorneys may wish to utilize written questionnaires in order to quickly identify any potential jurors that may be harmful to their case. Judges, however, will be inclined to disallow the use of questionnaires in order to save court time.

   Section 222.5(f) reads: "A trial judge shall not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel. If a questionnaire is utilized, the parties shall be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences." Attorneys should convince the court that questionnaires will actually cut precious court time spent on jury selection. Although the time taken to fill out a questionnaire may be somewhat considerable, an attorney should try to request that the potential jurors answer these questions in the jury assembly room before reporting for the selection process.

   After the questionnaires are filled out, Section 222.5(f) states that "the parties shall be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences." Attorneys should try to convince the court that the potential jurors should be dismissed for the day to give the parties time to review the questionnaires. Although this may add another day to the selection process, this time can be used to settle other trial matters such as motions in limine.

   Using a questionnaire will allow counsel to quickly identify potential jurors that will both be beneficial and harmful to their case, which will make the juror selection process much more efficient. Answers from a written questionnaire also tend to be more honest than if a potential juror were to orally explain themselves in open court in front of their peers and the officers of the court. In short, written questionnaires help counsel "to intelligently exercise both peremptory challenges and challenges for cause." (Section 222.5(b)(1).)

3. Use of certain questions

   Traditionally, attorneys believed that the goal of jury selection was to "precondition" panel members in order to find the best jurors for their particular case. Courts have caught on to these tactics and have increasingly restricted an attorney's right to question panel members about certain issues or subjects, despite the fact that effective jury selection is more about "de-selection" than "preconditioning." For an in-depth discussion of this particular issue, please refer to our Tips For Successful Jury Selection resource article.

   The court may thus restrict a lawyer's line of questioning as irrelevant to the jury selection process. Nonetheless, Section 222.5 does not impose a relevancy standard for jury selection. This section simply states that "Upon completion of the judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause." Because peremptory challenges do not require an explanation for removal of a particular panel member, a lawyer should not be restricted in his or her line of questioning based on relevancy. (See Code Civ. Proc., § 226(b).)

4. Use of question boards and video

   An attorney may wish to utilize printed poster boards or a video projector to display jury selection questions. Questions that are displayed on poster boards or on a video projector allow each potential juror to respond faster than it would take if the lawyer were to ask each juror individually. If the court is not inclined to allow this, explain that this process allows for more systematic and organized questioning and would actually make selection run faster.

5. Rehabilitation of biased members of the panel

   To the judge, flexible jury selection goes against the idea of courtroom efficiency because it takes up more of the court's valuable time for the rest of the trial. This problem is compounded when jurors admit to their biases or ask to be excused from selection due to hardship. In order to maintain efficiency, many judges will attempt to "rehabilitate" a potential juror who has admitted to being biased about a particular issue. The judge will usually ask this individual whether they can follow the law despite any personal experiences or beliefs that may otherwise impact the individual's judgment.

   However, "rehabilitation" has an overall negative effect on the trial. When the court asks an individual whether he or she can put his experiences aside and be impartial, few will actually say that they cannot follow the law, even if that is true. Potential jurors are placed in an uncomfortable situation given the potential judgment by fellow panel members and the ominous presence of the court. This dynamic is well-recognized in case law. (See People v. Balderas (1985) 41 Cal.3d 144; see also People v. Williams (1981) 29 Cal.3d 392.) This problem is further amplified when other panel members know that the individual is lying and that the judge is compelling a disingenuous response from the individual. The end result is that the virtue of the entire trial process becomes blemished.

   Regardless, it has persistently been held to be reversible error when a plaintiff or defendant is driven to waste a peremptory challenge to remove a potential juror who may be properly removed for cause. (See Leibman v. Curtis (1955) 138 Cal.App.2d 222.) When an individual admits that they have actual bias, he or she cannot be "rehabilitated" by simply saying that they can be fair and follow the law. (See Quill v. Southern Pacific Co. (1903) 140 Cal. 268; see also People v. Riggins (1910) 159 Cal. 113; see also People v. Balderas (1985) 41 Cal.3d 144, 183; see also People v. Williams (1981) 29 Cal.3d 392, 410; see also Lombardi v. California Street Cable Ry. Co. (1899) 124 C 311.) A potential juror is properly excluded for cause when he or she admits to be biased even when they state they will be impartial afterward. It is important to note however that the court always has ultimate discretion, and that the judge may reject challenges for cause in any case. (People v. Thornton (2007) 41 C4th 391, 414; see also People v. Kipp (1998) 18 C4th 349, 366; see also Graybill v. De Young (1905) 146 C 421, 422-424.)

For additional information, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.